High court to rule on voting law

Oct. 28, 2012

Marty Jackley

Written by

| Staff and wire reports

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WASHINGTON — Three years ago, the Supreme Court warned there could be constitutional problems with a landmark civil rights law that has opened voting booths to millions of African-Americans and Native Americans. Now, opponents of a key part of the Voting Rights Act are asking the high court to finish off that provision.

Areas with history
of discrimination

The basic question is whether state and local governments once found to have discriminated based on race still can be forced in the 21st century to get federal permission before making changes in the way they hold elections.

Some of the governments covered — most of them are in the South — argue they have turned away from racial discrimination over the years. But Congress and lower courts that have looked at recent challenges to the law concluded that a history of discrimination and more recent efforts to harm minority voters justify continuing federal oversight.

Ruling could come
as soon as today

The Supreme Court could say as early as today whether it will consider ending the Voting Rights Act’s advance approval requirement that has been held up as a crown jewel of the civil rights era.

The justices sidestepped this very issue in a case from Texas in 2009. In an opinion joined by eight justices, Chief Justice John Roberts wrote then that the issue of advance approval “is a difficult constitutional question we do not answer today.”

Since then, Congress has not addressed potential problems identified by the court. Meanwhile, the law’s opponents sensed its vulnerability and filed several new lawsuits.

The advance approval, or preclearance requirement, was adopted in the Voting Rights Act in 1965 to give federal officials a potent tool to defeat persistent efforts to keep blacks from voting.

Provision extended 25 years in 2006

The provision was a huge success, and Congress periodically has renewed it. The most recent occasion was in 2006, when a Republican-led Congress overwhelmingly approved and President George W. Bush signed a 25-year extension.

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The requirement applies to Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. It also covers certain counties in California, Florida, New York, North Carolina and South Dakota, and some jurisdictions in Michigan and New Hampshire.

Before these locations can change their voting rules, they must get approval either from the U.S. Justice Department’s civil rights division or from the federal district court in Washington that the new rules won’t discriminate.

Shannon, Todd counties affected

Attorney General Marty Jackley of South Dakota supports the challenge to the Voting Rights Act. Jackley has said he isn’t arguing to scrapping the preclearance requirement, just to update it.

“We’ve had over 3,500 statutes and rules precleared,” Jackley said in an Aug. 25 article in the Argus Leader. “We haven’t experienced, necessarily, what some of the other states we’ve joined with are experiencing.”

Shannon and Todd counties are affected by the law in South Dakota. Both counties lie within reservations and have high Native American populations.

A change to the preclearance aspect of the Voting Rights Act would mean racial minority groups or their advocates would have to prove a new law or rule is discriminatory, said Rich Hasen, a professor of law and political science at the University of California-Irvine, for that Aug. 25 Argus Leader article. The burden of proof would shift.

“Minority groups like ... Native Americans would not have the same bargaining chips,” Hasen said.

Barriers documented in recent decades

Congress compiled a 15,000-page record and documented hundreds of instances of apparent voting discrimination in the states covered by the law dating to 1982, the last time it had been extended.

Among the incidents in the congressional record:

■ In 1998, Webster County, Ga., tried to reduce the black population in several school board districts after a majority-black school board was elected for the first time.

■ In 2001, Kilmichael, Miss., canceled an election when a large number of African-American candidates sought local office following 2000 census results that showed blacks had become the majority in the city.

■ In 2004, Waller County, Texas, sought to limit early voting near a historically black college and threatened to prosecute students for illegal voting after two black students said they would run for office.